Interpret legislation to complete agency work
CPPDSM4009A Information Manual
Queensland
Contents
Legal Framework ................................................................................................................................................................ 3
Real Estate Legal Structure .......................................................................................................................................... 3
Constitutional Separation of Powers ............................................................................................................................. 3
Components of Statute Law ................................................................................................................................................ 4
Common Law ................................................................................................................................................................ 4
Equity ............................................................................................................................................................................ 4
Statute Law ................................................................................................................................................................... 4
Regulations ................................................................................................................................................................... 5
Policies .......................................................................................................................................................................... 5
Legal Precedents .......................................................................................................................................................... 5
Hierarchy of the Courts ................................................................................................................................................. 6
The Structure of Real Estate Legislation and Regulations .................................................................................................. 7
How to Find Information in an Act ................................................................................................................................. 7
Australian Legislative Structure ..................................................................................................................................... 8
Commonwealth Government Acts and Jurisdiction ....................................................................................................... 8
Queensland Government Acts and Jurisdiction .......................................................................................................... 11
Local Government Acts and Jurisdiction ..................................................................................................................... 14
The Legislative Process – How Laws Are Made ............................................................................................................... 15
The Federal Legislative Process ................................................................................................................................. 15
The Queensland Legislative Process .......................................................................................................................... 17
Interpretation of Legislation ......................................................................................................................................... 19
Departmental Assistance ............................................................................................................................................ 20
Legal Advice................................................................................................................................................................ 21
Ensuring Compliance with the Law ................................................................................................................................... 22
Responsibilities for Legal Compliance ........................................................................................................................ 22
Complying with Industry Codes of Conduct ................................................................................................................ 23
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Legal Framework
The legal framework that an agent must work within impacts on two areas of agency operation:
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The way we conduct our business and behave towards consumers; and
The legal background for all our transactions, in particular the contracts and leases that we negotiate on behalf
of our clients and customers.
Real Estate Legal Structure
When we operate as agents within any State or Territory of Australia, we are bound by a range of legal structures that
come under the following jurisdictions:
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Commonwealth legislation;
State legislation;
Rules of common law;
Rules of equity; and
Council by-laws and regulations.
In addition to these structures, we are also bound by voluntary codes of conduct and ethical practice that we may adopt
through membership of organisations such as the respective Real Estate Institutes in a particular State or a real estate
franchise group or association.
Constitutional Separation of Powers
The Constitution of Australia ensures that no one entity or person has absolute or total control of power and provides
that power be divided between three distinct entities that compliment, check and balance the activities of the other.
These three entities are:
1. Legislative Power – This power is given to a Parliament to make laws through the provisions of legislation. In
Australia this power is present at both State and Commonwealth level.
2. Executive Power – This is the power to implement these laws and is given to each respective government at
State and Commonwealth level. This power applies to ruling governments and their Ministers, heads of
government departments and the public servants who act on their behalf to implement the law.
3. Judicial Power – This is power given to the High Court of Australia to rule if legislation is legal and enforceable
according to the Constitution of Australia. At State level, other Courts can rule and enforce State-based
legislation. These include a District Court, Magistrates Court and the Supreme Court.
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Components of Statute Law
Queensland was a British colony settled and administered by British public servants. The first laws that applied were the
Laws of England and today we still see remnants of this legislation in a range of Imperial Statutes, Common Law and
Equity. The earliest laws that governed property transactions in this State were regulated under the Constitution Act of
1867.
It was not until Federation in 1901 that the Commonwealth of Australia was formed. The Commonwealth, through the
new Constitution took many powers away from the States and through the Statute of Westminster 1931 removed
restrictions upon the Commonwealth of Australia from enacting laws contrary to the Statutes of England.
Today the laws of Queensland consist of:
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Acts of the Commonwealth Parliament;
Acts of Queensland Parliament;
Rules of Common Law; and
Rules of Equity.
Common Law
The term common law refers to the belief that all law is based on common legal practice from England. It is believed that
the same common law applied equally throughout the country. Common law complied with the way people lived in
England centuries ago and still refers to contract being formed in return of consideration such as a peppercorn or a
donkey. The system of laws was based on Court decisions and on the doctrines implicit in those decisions, and on
customs and usages rather than on codified written laws. Today common law is based on case law where a Judge has
presided over a trial and considered the facts based on a range of precedents set over the years from other similar Court
cases.
Common law still plays an important role in real estate transactions. In particular, contract law is based on English
common law and the terms and conditions of the standard contract in Queensland are based on common law
precedents where the Courts have decided the outcome of a dispute involving the sale of property. Likewise, the terms
and conditions of sale by auction are also based on common law precedents.
Equity
The term equity supplements the rigid rules of common law which developed over the years or where common law could
not find an adequate solution or outcome to a situation. Equity is in effect finding a fair outcome given a set of
circumstances. The Courts of Chancery in England administered the Rules of Equity. If there was a conflict between
the Rules of Common Law and the Rules of Equity, then it was declared that the Rules of Equity would apply so that
there would be a fair and balanced outcome. Today the Rules of Equity are outdated and rigid, and as a rule, have not
kept pace with the more flexible statute law.
Statute Law
The term Statute Law refers to an Act of Parliament or Regulation passed by Parliament. It can also refer to a By-Law of
a Body empowered by Parliament to make such laws. This means that a statute may be any of the following:
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An Act of the Commonwealth Parliament;
An Act of a State Parliament;
An Imperial Statute (an Act of the British Parliament);
Regulations made by the Governor in Council or similar; or
A local By-Law passed by a Council.
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A statute may deal with all the components of the law relating to a matter or may only apply to certain components or
matters relating to the law. The more recent the statute, the more complete it will be. For instance, the Residential
Tenancies Act is considered a complete statute in that it covers a wide range of matters that impact on residential
tenancies in Queensland. However, it should still be read and considered in conjunction with the Property Agents and
Motor Dealers (PAMD) Act, which deals with residential tenancies from the Client-Agent perspective.
A “Code” provides for all the law on a particular matter and can supplement or even alter a body of common law or
equity on a particular subject. The PAMD (Real Estate Agency Code of Conduct) Regulation 2001 applies specifically to
the conduct of an agent in defined circumstances and will override earlier common law precedents on how an agent
must behave in that same circumstance. A Code which is a regulation is enforceable as statute law. A voluntary Code
is not enforceable under the law and only applies to the organisation or body that has bound its members by that
condition of conduct.
Regulations
Multiple regulations can be made under each statute. A regulation is a vehicle through which the subject matter of its
parent statute is expanded and further information is provided on particular areas of governance. Regulations allow for
the flexibility within the law and an Act and its Regulations should always be read together so that the full extent of
interpretation is achieved. All regulations are approved by Parliament and are legally enforceable.
Policies
Policies are not technically “legislation” but they are useful for providing background information and guidance on the
subject matter covered by legislation. The bodies responsible for administering and regulating the law will write policies
as a guide to legislation which informs public servants, legal advisers and consumers of aspects of how the legislation
should be applied in the spirit of the law.
Policies for instance are very common under the Residential Tenancies Act. The Act does not, for instance cover the
process of fixing a rental price on a property. However, the RTA has formulated a policy on how to minimise rental
bidding where there is more than one party interested in securing a property.
Legal Precedents
The Courts of Common Law and Equity have existed for hundreds of years and decisions are written down and kept as a
Court record so that future cases can be referred back to a precedent or previous ruling to gather how the Court (or a
Judge) may again consider a verdict on a particular matter. Statute Law is sometimes tested in a Court where parties
seek to have a particular part of the law “tested” and legally interpreted for clarification. Decisions of the Courts also
clarify the law so that agents may conduct their business secure in the knowledge that such conduct does not infringe
any laws.
For example, the Property Agents and Motor Dealers (PAMD) Act has already had a number of matters tested in the
Courts since its commencement in 2001. This includes the validity of a residential contract where the Warning
Statement was not “physically” attached to the front page of the contract of sale. In this case, the Court found that
attached meant that the warning statement must be stapled or bound, and could not be simply attached by a clip or other
loose device. There have also been cases where the Court has been forced to determine whether a contract is correctly
presented to a buyer when being faxed and compatibility between provisions of the PAMD Act and the Electronic
Transmissions Act regarding faxing, and emailing a contract.
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Incompatibilities also exist between common law and statute law on legal interpretations. Where incompatibilities exist,
statute law will prevail. For instance, in the Property Agents and Motor Dealers Act, specific timeframes have been
regulated for the five business day cooling off period and the maximum term of a sole or exclusive agency agreement.
In such circumstances, the statute law rules that day one is the day the agreement is formed and the parties are bound.
This means that the timeframes are inclusive of the first day, whereas under common law, timeframes are expressed as
clear days.
Hierarchy of the Courts
Commonwealth Jurisdiction: The High Court of Australia is the absolute Court of Appeal in Australia. Most matters
being heard at Commonwealth level relate to matters of Commonwealth jurisdiction and most commonly Commonwealth
statutes. The Commonwealth legal system involves a Federal Court (presided over by a single Judge), a Full Federal
Court (presided over by a panel of Judges), and the High Court (also presided over by a panel of Judges).
State Jurisdiction: The Full Supreme Court is the absolute Court of Appeal at State level. In certain circumstances an
appeal can move from the Full Supreme Court to the High Court by special leave to exercise Federal jurisdiction. The
Queensland State legal system involves local Magistrates Courts, District Courts, the Supreme Court (presided over by a
single Judge), and the Full Supreme Court.
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The Structure of Real Estate Legislation and Regulations
Note: Please refer to a copy of the Property Agents and Motor Dealers Act (preferably a current hard copy) when
completing this section.
Legislation is structured in a strict hierarchical order according to British Westminster standards. Most items of
legislation are divided into two parts:
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The main body which contains the legislated content of an Act; and
The schedules which contain the miscellaneous content of an Act.
Before the main body comes a set of introductory data including the Titles and Introductory Text. In the case of an Act,
the introductory data will begin with the Short Title, followed by the Long Title. It is also common for the Act to contain
some introductory text such as a preamble or words that were used by the speaker of the House to enact it.
The main body and schedules are referred to as the Divisions of the Act. Lower levels of Divisions within the main body
and schedules may include Parts, Chapters, and Cross-Headings. The lowest levels of division in an Act are Sections
(in the main body), Paragraphs (in the schedules), and the Provisions.
How to Find Information in an Act
When you are finding specific information in an Act or wish to refer to a part of the Act, you must use the hierarchical
protocols correctly to avoid mistake, error or misinterpretation. When reading an Act, it is important to ensure that you
have the most recent reprint or copy. Fortunately, now that we have ready access to legislation via the internet, the
government publisher will ensure that the most recent version is always published electronically on the government
website, and will include a date of the last amendments and upgrades. The information will also clearly state the date of
the last update and when the new amendments came into force.
Go to the Contents page at the beginning of the Act and refer to the matter you are searching for. If you are using the
internet, the Act is especially tabbed so that you can search quickly by using bookmarks. Your primary search will
indicate a Part number followed by a Chapter. Within the Chapter there will be Section numbers. Within the Section
numbers there will be Subsections.
Definitions and Interpretations: It is essential that you always read and understand the definitions and interpretations
contained within the Act first before reading the actual legislation applying to those matters. The interpretations are
statutory definitions of the meaning of words and terms contained within the Act. These definitions are how a user of the
Act or a Court of law would be required to interpret a particular part of the Act.
Provisions: A provision can in principle mean a discrete element in a piece of legislation that has legislative effect. It is
the most basic element of a division, section or paragraph and often relates to the finer detail of a section or sub-section.
Annotation: An annotation is a note that appears at the foot of a provision (or under an associated heading if relating to
a higher level division) which gives authority for an effect or extra information about a provision in general or a specific
part of that provision. Each annotation has a reference number and identifies the nature of the information it contains for
reference for the reader.
Schedule: A Schedule follows the main body of the Act and can be singular or collective. The schedule or schedules
constitute the major structural division within the legislation and demonstrate the implementation and details of matters
dealt with in the main body of the Act. In effect they are the business part of the Act and tidy up the loose ends
regarding matters dealt with within the Act. The Property Agents and Motor Dealers Act has two schedules and the
Regulation also has schedules, including the fee schedule for agents and educational eligibility requirements for agents.
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Amendments to an Act: An amendment is a change to the legislation. When an amendment is proclaimed it will be
published by the government publisher and notifications will appear on the relevant website containing the Act. If you
are using a hard copy version of the Act you will need to order copies of the amendments from the government printer‟s
office and physically paste or staple the amendments to the Act over the superseded sections. Until recently the making
of physical amendments to hard copies of Acts was a fulltime job in some legal firms. Today, internet access to current
legislation with the most up-to-date amendments is the norm and most businesses will rely on a reputable website for all
amendments as they are proclaimed. Most reliable websites for up-to-date real estate legislation include:
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State government departments and regulators through the State government publisher;
ComLaw, run by the Commonwealth Attorney-General‟s Department: http://www.comlaw.gov.au/;
Australasian Legal Information Institute: http://www.austlii.edu.au/; and
Through your local Real Estate Institute or visiting the Real Estate Institute of Australia website.
Australian Legislative Structure
Australia is a federation and power is shared between three levels of government, each level having their own
jurisdictions:
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Commonwealth: Law making can apply to any area of national interest including defence, foreign affairs,
trade and commerce, immigration, security, taxation, corporate governance, postal, telephonic and information
technology, quarantine, fisheries, currency, copyright, and marriage.
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State and Territory: Include almost everything that the States did not give to the Commonwealth at
Federation, including health, education, transport, agriculture, forests, and environment.
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Local: Local government powers are defined by Acts of Parliament in each State and include building and
planning regulations, waste management, recreation spaces, dog control, and regulation of local businesses
The three levels share power over some jurisdictions such as roads, environmental management and public health
issues.
Commonwealth Government Acts and Jurisdiction
Commonwealth legislation is framed and regulated under an Act of the Commonwealth Parliament and applies at a
national level to encompass all States and Territories. Commonwealth legislation that applies to real estate transactions
and operations includes:
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Competition and Consumer Act 2010
Financial Services Reform Act 2001
Privacy Act 1988
The Australian Securities and Investment Commissions Act 1989
Corporations Act 2001
Foreign Acquisitions and Takeovers Act 1995
Managed Investments Act 1998
Native Title Act 1993
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The following is a brief description of each Act and its purpose.
Competition and Consumer Act 2010
The Competition and Consumer Act exists to encourage a fair and competitive environment for businesses to
operate in. The Act especially encourages small businesses such as real estate agencies to trade in a vigorous
environment where everyone can compete fairly and consumers can be protected. In particular it:
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Controls anti-competitive practices such as exclusionary agreements or cartels that may be detrimental to some
business operators;
Monitors business mergers so that consumers can benefit from a competitive trading environment;
Checks misuse of market power to ensure that all businesses have a fair advantage in the market place;
Monitors price-fixing to ensure healthy price competition;
Protects small businesses that belong to franchise groups;
Prohibits businesses from engaging in misleading or deceptive behaviour when dealing with consumers; and
Ensures that no business or individual is adversely affected by unconscionable conduct which occurs where a
stronger party takes advantage of a weaker, less informed party.
The Australian Competition and Consumer Commission (ACCC) is a statutory body that administers and enforces
the Act. Its role is to enforce the Competition and Consumer Act by ensuring that all business owners are educated
and fully informed, and where breaches have occurred, take appropriate action to enforce compliance. The ACCC
sees the Act as an important management tool for the property industry and encourages agents to implement best
practice guidelines for their businesses to be compliant with the legislation. The ACCC produces a wide variety of
publications specifically written for real estate agents.
Competition and Consumer Act 2010
http://www.austlii.edu.au/au/legis/cth/consol_act/caca2010265/
Australian Competition and Consumer Commission
www.accc.gov.au
Financial Services Reform Act
All companies or individuals that provide financial advice or deliver a financial service to consumers must be licensed
and regulated under this Act. A real estate agent does not have to hold an AFSL (Australian Financial Services
Licence) to sell individual property. However, if the agent is giving investment advice, such as comparing rates of
return between different forms of investment, or is involved in guaranteeing a fixed return on an investment property
(such as rental guarantees on a managed investment), then they will need to hold a licence. An agent who also sells
an insurance policy to a client (such as rental insurance to a landlord) will also need to be licensed. An agent who
simply provides insurance paperwork on request from a client does not have to be licensed as long as they are not
giving advice about the insurance policy and what it covers, and they refer all questions or queries regarding a policy
back to a licence holder.
The Act is regulated by the Australian Securities and Investments Commission (ASIC). The legislation can be
accessed by visiting: http://www.asic.gov.au/
Privacy Act
The National Privacy Principles contained within the Privacy Act apply to all private sector organisations with an
annual turnover of three million dollars or more. In the case of a real estate business, the Act regulates the way an
agent deals with information collected from clients and customers. These provisions include the manner in which an
agent gathers information from individuals, how that information is stored, who has access to it and how the
information is disposed of once it is no longer needed. Customers and clients of an agency also have the right to
access information being held on them by an agency upon written request.
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The Privacy Act has direct application in agency practice in a number of areas. It impacts in particular on agencies
with rental and property management operations and applies to how we collect and store information for a tenancy
application, and how we source and maintain information gathered when securing rental references on behalf of a
landlord. The Privacy Act also impacts on direct marketing activities when agents use a range of data sourced from
open for inspections, referrals and public databases.
The Act is published and administered by the National Privacy Commissioner and can be accessed by visiting:
http://www.privacy.gov.au/
Australian Securities and Investment Commissions Act
This Act mirrors the consumer protection provisions of the Competition and Consumer Act and upholds the interests
of consumers within the financial services sector. The Act regulates general and life insurance, superannuation and
banking activities. It rigorously oversees the codes of conduct under which the financial services sector operates
and regulates consumer protection relating to any new financial or insurance products entering the market. Any
matters relating to the payment of superannuation come under the provisions of this Act and should be carefully
monitored by a business owner.
The Act is regulated by the Australian Securities and Investments Commission (ASIC) and can be accessed by
visiting: http://www.asic.gov.au/
Corporations Act
The Corporations Act 2001 is the principal legislation regulating companies in Australia and sets out the laws relating
to business entities in Australia at Federal and interstate level. Its main focus is on the formation and operation of
companies, the legality of the rules of the company, the duties of a company officer, takeovers and mergers, fund
raising (such as floating a company) etc. The Act also deals with the formation and operation of partnerships and
managed investment schemes.
The Act is regulated by the Australian Securities and Investments Commission (ASIC) and can be accessed by
visiting: http://www.asic.gov.au/
Foreign Acquisitions and Takeovers Act
The Foreign Acquisitions and Takeovers Act 1975 regulates foreign acquisition of land interests and foreign control
of business and mineral rights in Australia. It is a very important Act for real estate agency practice as it designates
what type of real estate can be acquired by foreigners and stipulates terms and conditions of purchase and
ownership. It also sets out the process for buying real estate in Australia for foreigners.
The Act is regulated by the Foreign Acquisitions and Takeovers Board. It is an advisory body as well as a regulatory
body and provides an excellent information service for agents and foreign investors. The legislation can be
accessed by visiting: http://www.firb.gov.au/
Managed Investments Act
This Act regulates the operation of managed investments. The Act applies to investments where the consumer does
not have direct input into how the investment is to be managed on a day-to-day basis and the investment is run by a
third party contracted on behalf of a pool of investors.
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In real estate, the Managed Investments Act applies to:
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Property trusts – both listed and unlisted;
Managed hotel suites and short-term accommodation apartments where there is a management company
controlling the day-to-day operation of the business and properties are put into a leasing pool;
Time share schemes; and
Listed and unlisted mortgage funds;
The Act sets in place certain reporting requirements for investors and provides for a full prospectus of activities to be
adhered to and performed by a management entity, including fees to be charged, rates of return on the investment,
and protection of the consumers interests within the business operation.
The Act is administered and regulated by the Australian Securities and Investments Commission (ASIC). The
legislation can be updated and accessed by visiting: http://www.asic.gov.au/
Native Title Act
The Native Title Act 1993 attempted to clarify the legal position of landholders and the processes that must be
followed for Native Title land to be claimed, protected and recognised through the Courts. Because of the confusion
and conflict arising out of this legislation, the Act now exists to deal only with land that is recognised as being in
custody of its traditional owners and does not apply to new land right claims. Land rights are new legal rights that
are created and granted under Australian law to indigenous Australians. In a land rights claim Indigenous
Australians can seek a grant of title to land from the Commonwealth, State or Territory governments. That grant may
recognise traditional interest in the land and protect those interests by giving indigenous people legal ownership of
that land (as set out in the Mabo and Wik decisions).
Amendments to the Act in 2006 have reinforced the security of tenure to non-indigenous holders of pastoral leases
and other forms of land ownership that may have been claimed under the Native Title Act.
Queensland Government Acts and Jurisdiction
State Parliaments make laws that are enforced within the State of origin. State laws generally relate to matters of State
interest that are not already claimed in the constitution as a Federal jurisdiction, including schools and hospitals, roads
and railways, and utilities such as water supply, mining and agriculture. On other matters the Federal and State
Parliaments have concurrent powers. This means that both the Parliament of Australia and State Parliaments may make
laws about the same things – for instance roads and health. However, under the Constitution, if State law conflicts with
a Federal law, then the Federal law will prevail.
At this stage legislation specific to the sale, rental and management of real estate and the operations of a real estate
business come under respective State and Territory jurisdictions. However, in time this legislation will converge and
come under Federal jurisdiction as the States surrender their powers and the Commonwealth pushes ahead with one
uniform property licensing system in Australia. By 2012 it is envisaged that real estate practice will be regulated
nationally under one Act of Federal Parliament (see Council of Australian Governments – COAG) and all agents will be
licensed uniformly throughout Australia. Under this system, the States will perform a delegated role as enforcement
agencies, especially in matters relating to consumer protection and State specific matters impacting on real estate
operations.
At present, Queensland real estate legislation is framed and regulated under an Act of the Queensland State Parliament
and applies only to real estate agents whose licenses are issued in Queensland or to real estate transactions which were
instigated in Queensland by a Queensland registered entity, regardless of where the subject transaction took place (see
Riley v Ferrantino; CCT; February 2008).
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Queensland legislation that applies to real estate transactions and operations includes:
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Property Agents and Motor Dealers Act 2000
o Property Agents and Motor Dealers Regulation 2001
o PAMD (Auctioneering Practice Code of Conduct) Regulation 2001
o PAMD (Property Developer Practice Code of Conduct) Regulation 2001
o PAMD (Real Estate Agency Practice Code of Conduct) Regulation 2001
o PAMD (Restricted Letting Agency Practice Code of Conduct) Regulation 2001
Land Sales Act 1984
o Land Sales Regulation 2000
Integrated Planning Act 1997
Property Law Act 1974
Land Title Act 1994
Body Corporate and Community Management Act 1997
Residential Tenancies Act 1994
Property Agents and Motor Dealers Act
All Queensland real estate agency operations are governed by the Property Agents and Motor Dealers (PAMD) Act
and the Property Agents and Motor Dealers Regulations which control the agency practice of those in the field. The
Property Agents and Motor Dealers (Real Estate Agency Practice Code of Conduct) Regulation is of particular
importance to the ethics and conduct of all real estate personnel.
The PAMD Act and its Regulations are administered and regulated by the Queensland Office of Fair Trading (OFT),
Department of Justice and Attorney-General. A series of fact sheets and special alerts are published by the OFT
whenever there has been an amendment to legislation and agents should subscribe to the OFT newsletter so that
they can receive alerts as soon as they are published. The legislation and updates can be accessed by going to:
http://www.fairtrading.qld.gov.au/
Land Sales Act
The Land Sales Act was originally legislated to protect buyers of property being purchased “off the plan” in
Queensland. The provisions of the Act apply to both vacant land sales and community title lots being sold before
registration of the title. The Act ensures that each lot being sold is clearly identified and all relevant disclosures are
made to a buyer so that misrepresentations are not made. The Act also protects monies paid by way of deposit for
sales “off the plan”.
The Act provides guidelines to enable developers to market and sell properties before construction works have
commenced. This helps a developer to secure essential pre-sales so that finance can be secured and the project
can proceed with less risk to the parties involved.
The Land Sales Act is administered and regulated by the Queensland Office of Fair Trading, Department of Justice
and Attorney-General. The legislation and updates can be accessed by going to: http://www.fairtrading.qld.gov.au/
Integrated Planning Act
The Integrated Planning Act (IPA) provides the framework for Queensland‟s planning and development assessment
system. The IPA sets out the process for when and how development can occur. The legislation coordinates
planning at local, regional and State levels. It also manages the processes by which development occurs and
includes provisions relating to a local councils planning scheme and defines what type of development requires
council approval.
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The IPA has taken the responsibility for planning out of the hands of local government and through consultative
processes developed a master plan for the environment, community wellbeing and future economic development. Its
jurisdiction includes:
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The Integrated Development Assessment System (IDAS) – which is one system for all development related
assessments by local and State governments;
Master planned areas;
State and regional planning policies;
The SE QLD Regional Plan; and
Infrastructure Planning.
The Integrated Planning Act is regulated and administered by the Department of Infrastructure and Planning (QLD).
The legislation and updates can be accessed by going to the following website: http://www.dip.qld.gov.au/ipa
Property Law Act
The Property Law Act regulates the conveyancing of real property in Queensland. Its principal jurisdictions are land
law, conveyancing and family law (property). The Act consolidates, amends, and reforms the law relating to
conveyancing, property, and contracts. It also facilitates the resolution of financial matters at the end of a de facto
relationship.
The Property Law Act comes under the administration of the Office of Queensland Parliamentary Council. The
legislation and updates can be accessed by going to the following website:
http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/P/PropertyLawA74.pdf
Land Title Act
The Land Title Act consolidates and reforms the law about the registration of freehold land and interests in freehold
land. It sets out the rights of owners who hold title over land and establishes the process for how a new title is to be
registered and securely issued and stored. It also covers the extinguishment of title. In effect, it ratifies the Torrens
Title freehold land system in Queensland and formalises the way we own freehold property.
The Land Title Act comes under the administration of the Office of Queensland Parliamentary Council. The
legislation and updates can be accessed by going to the following website:
http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/L/LandTitleA94.pdf
Body Corporate and Community Management Act
The Body Corporate and Community Management (BCCM) Act provides statutory guidelines to cover the formation
and operation of a Body Corporate for Community Title Schemes. It sets out the rights and responsibilities of parties
associated with the running of a body corporate including the proprietors of a community title lot, office bearers and
resident managers. The Act regulates body corporate by-laws and operations, including entitlements, voting powers
and the conduct of body corporate meetings. It also regulates the financial management of a body corporate. There
are strict rules about how the body corporate is administered, including funding for the administration and sinking
funds and there are regulated provisions relating to the long-term maintenance of body corporate buildings and
assets.
The BCCM Act is administered by the Office of the Commissioner for Body Corporate and Community Management
(BCCM Office), Department of Justice and Attorney-General. The legislation and updates can be accessed by going
to the following website: http://www.justice.qld.gov.au/3260.htm
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Residential Tenancies Act
The Residential Tenancies Act outlines the rights and responsibilities of tenants, lessors, property managers and
caravan park managers involved in private residential renting in Queensland. The Act sets out what tenants, lessors,
property managers and park managers can and cannot do, how to address issues that may arise during a tenancy,
and explains what measures can be taken if a party or parties to a tenancy breach the provisions of the law.
The Residential Tenancies Act is administered by the Residential Tenancies Authority. The legislation and updates
can be accessed by going to the following website: http://www.rta.qld.gov.au/
Local Government Acts and Jurisdiction
Local councils are small legislative bodies which make by-laws relating to local matters such as local roads, parks,
playgrounds, rubbish collection, library services, sporting fields and facilities, signage, and domestic animal regulation.
Local councils are funded through State Parliaments and are regulated by an Act of Parliament. In QLD this is the Local
Government Act (1993) and its respective regulations and can be accessed by visiting:
http://www.localgovernment.qld.gov.au/
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The Legislative Process – How Laws Are Made
We have seen in previous sections the legislative structure that agents work under at both State and Commonwealth
level. We have also seen the impact of both legislative processes and Court decisions on the laws that agents work
within. In this section we will describe the process for drafting and passing real estate legislation. By understanding this
process an agent will develop an appreciation of how legislation is reviewed and amended, and develop better skills for
tracking legislation relevant to their business from concept to implementation.
The Federal Legislative Process
House of Representatives
Statute law (a law passed by an Act of Parliament) will override common law in most cases. This is because the law
has been researched, debated and ratified by the Members of State or Federal Parliament and it reflects the most
current application of the law to modern day matters. To understand the legislative process better, it is important to
understand how laws are made and implemented into mainstay business and legal practice.
A proposed law is called a Bill and it can be introduced to the House of Representatives by a Minister or a Member of
the House of Representatives as a Private Members Bill. A new Commonwealth law (which applies nationally) can
only be made, or an existing one changed or removed, by or under the authority of Parliament. If a law is passed in
the House of Representatives it must also be presented to the Senate for ratification. The Senate has the power to
block a Bill or amend it and refer it back to the House of Representatives to re-consider and vote on again.
A Bill becomes an Act (or law) only after it has passed in identical form through both Houses of Parliament and has
been assented to by the Governor-General. The original proposal for a new law can come from a range of sources.
It may result from party policy, from suggestions from a Minister, or a Member representing a certain electorate
where the issue has been raised by the public. Many pieces of legislation however come about as a result of political
and administrative necessity and are driven by the heads of government departments and regulators as they try to
keep abreast of the changing social, economic and technological environment in which we live and do business.
This is particularly the case with Commonwealth legislation relating to telecommunications and internet trade and
censorship, taxation, consumer protection and terrorism.
Before a Bill is proposed to the House of Representatives it is considered by Cabinet and the Prime Minister, and if
agreed to, the Minister responsible for the particular matter will prepare the Bill for presentation to the house. Bills
are drafted by the office of Parliamentary Counsel in accordance with detailed instructions issued by the relevant
department.
A draft Bill will then be examined by specially convened government party committees and feedback is sought from a
range of representatives so that all views and opinions are canvassed. The management of these Bills is the
responsibility of the Parliamentary Business Committee of Cabinet. This Committee will schedule Bills according to
their urgency and will determine the program of Bills to be introduced at each Parliamentary sitting period.
Community and Industry Consultation
It is at this point that the government department heads will seek industry input. At a national level, input will be
sought from organisations and member bodies such as the Real Estate Institute of Australia and National Industry
Councils. Members of those organisations who have a special interest in a matter relating to the Bill are consulted
with and feedback is gathered from a range of practitioners and business owners at State as well as Federal level to
ensure that the consultation process is thorough and informed.
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Passage of a Bill
Once the Parliamentary Business Committee is satisfied that the consultation process has been fulfilled, the Bill will
begin its passage through the House. Motions will be moved to pass the Bill in the House and then speakers will
present their cases for and against. Once the Bill has been fully debated it will be put to a vote for a decision of the
house. There are a number of stages that the Bill progresses through during this time:
1. The person who is introducing the Bill gives written notice to introduce a Bill to the Clerk of the House.
2. The Bill is introduced to the House during a sitting day where business will be dealt with. The Minister will
present the Bill and then the Clerk will stand and read the short title of the Bill. At that point of time the Minister
will present the Clerk with a signed copy of the Bill. The Clerk will then read the long title of the Bill. This is
known as the first reading. Copies of the Bill are then given to Members and made available to the public on
the Parliament‟s internet site (http//:www.aph.gov.au). This is an important time for parties who have an interest
in the matters covered by the Bill and submissions will be called for feedback to be lodged by a closing date.
3. The Minister will move that the Bill be read a second time and then will make a speech explaining the purpose,
objectives, general principles and effect of the Bill. Debate will be adjourned at this point of time and set down
for future business. There will be a few weeks where public discussion and feedback is solicited and digested
by the Minister and the party.
4. The second reading of the speech, (along with an explanatory memorandum) plays an important role in the
legislative process and will often be taken into consideration by the Courts in deciding the meaning or intention
of the Act. Considerable debate normally takes place during the second reading and this is when the
opposition (through its Shadow Minister) will argue the opposition‟s opinion of the Bill. At the end of the debate
a second vote is taken and it is deemed to have passed, if there is a majority, through the second reading.
5. The third reading will take place after the Bill has been examined in detail and if there are no objections, it will
move to the third reading. This stage is more of a formality. The Minister will move the motion that the Bill be
read a third time. When the motion has been agreed to, the Clerk will read out the long title of the Bill, which
signifies that the Bill has passed through the House.
6. Transmission to the Senate: After a Bill has passed the House, the Clerk signs a certificate and attaches it to
the Bill, declaring that it is “now ready for presentation to the Senate for its concurrence”. The Speaker also
attaches a message to the President of the Senate and the Bill is delivered by the Sergeant-at-Arms to the
Senate.
7. The Bill must go through three more readings in the Senate. When it has passed the Senate, the Senate will
return the Bill to the House, with or without amendments. Amendments by the Senate must be voted on by the
House and may be accepted or disagreed to.
8. Assent: When the Bill has finally passed both houses in identical form and has been checked and certified by
the Clerk of the House, it is presented to the Governor-General for assent. At this point the Bill becomes an Act
of Parliament and becomes part of the Law of Australia. However, its validity is still subject to Court challenge
and often amendments will be made as a result of the findings in a Court of law.
When a Law Comes into Effect
Acts of Federal Parliament do not automatically come into operation immediately on assent. An Act usually has a
commencement date (sometimes retrospective). If there is no commencement date, then it is accepted that the
commencement date will be the 28th day after it has received assent.
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How to Track Federal Legislation
There are a number of websites that can now be accessed to monitor Bills being presented to the House of
Representatives. As a real estate agent it is important to check these websites regularly to track progress of a Bill
and to also become involved in the consultation process where a matter may be of relevance to the real estate
industry or your business.
For copies of Bills, explanatory memoranda and second reading speeches: www.aph.gov.au/bills
For information on the progress of Bills through the House: House of Representatives Daily Bills List, published daily
during sittings and available from: www.aph.gov.au/bills
For a list of Bills introduced and debated: Last week in the House, published weekly during sittings and available
from: http://www.aph.gov.au/house/house_news/index.asp
The Queensland Legislative Process
The making of an Act or Law in Queensland follows a very similar process to that of the House of Representatives.
However, in Queensland there is no Upper House or Senate to ratify the law, so once it has passed through Queensland
Parliament (Legislative Assembly) and had its third reading, it moves straight to Royal Assent.
Before the Introduction of a new Bill to State Parliament
The Executive Managers of divisions within the Office of Fair Trading, including the Investigations Division (who
investigate complaints against agents) and the Commercial and Consumer Tribunal (responsible for prosecuting
breaches by agents) will confer with Executive Managers of other divisions such as licensing. A formal report will be
presented to the Commissioner. The Commissioner will then confer with the Minister to determine whether a new Act is
required or whether an amendment to existing legislation will be sufficient to deal with the matters under consideration.
At this stage a formal review of the old Act may be called for. This review will require the calling of formal submissions
from stakeholders such as:
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Real estate agents;
Solicitors;
Consumers;
Real estate industrial organisations;
The REIQ; and
Real estate advisory committees.
Depending on the outcome of the review it will be determined whether an amendment is to be made or a new Bill
drafted. Amendments are more common to recent legislation whereas a new Act is usually proposed where the existing
Act is no longer relevant or requires too many amendments. An amendment will follow a similar passage to a Bill and
will sometimes be gathered into a special Bill passing a number of miscellaneous amendments relating to various Acts of
Parliament at the same time. This is known as a Miscellaneous Amendments Bill and often matters affecting a real
estate transaction can slip through the legislative process without being noticed because they are caught up in a range
of other unrelated amendments.
Draft Bill prepared
The Minister will brief the Policy Committee about proposed changes or the content for the new legislation and the policy
advisors will draft a Bill. The Parliamentary Counsel will present the document to the Minister who will introduce the Bill
to Cabinet for approval.
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Draft Consultation Bill
A Draft Consultation Bill will be made available for public consultation. Once feedback has been received, a second
Draft Exposure Bill will be prepared. If agreement between stakeholders and Cabinet cannot be reached, then the
Minister may request that a Working Party be formed to resolve issues before the Bill commences passage through the
Legislative Assembly.
Cabinet approves Bill
Cabinet and the government Members approve the Bill and it is introduced to the Legislative Assembly by the Minister
for Justice.
First reading
The Clerk of the Parliament reads the short title of the Bill for the first time. Copies of the Bill and Explanatory Notes are
given to all Members. These Explanatory notes will be prepared by the Department of Justice and staff of that
department will be responsible for ensuring that all relevant parties have a copy of the Explanatory Notes so they can
make an informed decision.
Second reading
The Minister delivers a speech explaining principles and policies underpinning the Bill. Debate of the Bill is adjourned for
at least 13 calendar days to allow for reading of the Explanatory Notes and further consultation by Members with
constituents and relevant stakeholders. When the House resumes the debate, the Shadow Minister will be asked to
respond and put forward the Oppositions argument. The second reading debate continues with contributions from
government and no-government members. The Minister concludes the second reading debate. The Clerk reads the
short title of the Bill a second time.
Consideration in detail
The Legislative Assembly debates the clause of the Bill. Amendments may be made during this debate. The Speaker
and Deputy Speaker will preside over debate from the table of the House.
Third reading
The Clerk reads the short title for a third and final time. The long title of the Bill is also agreed to.
Royal Assent
Three copies of the Bill are presented to the Governor of Queensland by the Clerk of the Parliament for Royal Assent.
The Bill becomes an Act of Parliament.
Publication
The Act will have a commencement date or dates. If there is no commencement date, then it will come into effect from
proclamation in the Government Gazette. This is known as „Gazettal‟. Sometimes an Act can be retrospective, which
means that it applies to events that have occurred before the proclamation date.
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How to Track Queensland Legislation
The Office of the Queensland Parliamentary Counsel is the recognised source of all formal or proposed changes to
Queensland legislation. All agents are encouraged to subscribe to their automatic email updates for nominated
legislation. The website also contains:
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Acts in force (with amendments);
Bills (including their progress through the House);
Repealed legislation;
Bills introduced lists;
Bills as they are passed lists;
Cumulative updates on Bills; and
Weekly legislation lists.
Go to: http://www.legislation.qld.gov.au/OQPChome.htm
It is also important to subscribe to email alerts, updates and newsletters provided by the Office of Fair Trading,
Department of Justice and Attorney-General on:
http://www.fairtrading.qld.gov.au/OFT/OFTWeb.nsf/web+pages/DC0FCBF51D5D58514A256F2D0028316E?OpenD
ocument
The Residential Tenancies Authority also has an excellent “What‟s New” website that provides comprehensive
updates on amendments to legislation and policy updates relating to current issues impacting on agents at the time
of publication. Go to: http://www.rta.qld.gov.au/whats_new.cfm
Members of the REIQ also receive updates through the REIQ Journal and their email alerts to agents.
Interpretation of Legislation
Given the formal structure of Australia‟s legal system, there is a strict protocol on how the legislation must be applied by
the legal profession. The rule of protocol is set out below:
1. Hierarchy of Legislation: An Act (Statute) has priority over all other forms of law, including subordinate Acts and
Regulations. Subordinate legislation must always be interpreted consistently with the legislation under which it was
made. It must not be interpreted in a way which alters the scope or objectives of the superior legislation. Words and
phrases have the same meaning as in the superior legislation. If a policy is inconsistent with an Act, Statute or
Regulation, the policy is overridden by the Act, Statute or Regulation to the extent of the inconsistency.
2. The Literal Rule: Establish the plain and natural meaning of the words in the relevant section of the legislation. This
can be ascertained by using a Standard English dictionary. Sometimes a special meaning is given to words by the
“definition” section of the legislation.
3. The Context: If the relevant text of the legislation can be interpreted in different ways, other features of the legislation
can be used to clarify (but not distort) the meaning – such as the title, headings, structure and surrounding sections.
4. The Purpose Rule: There is always a purpose or range of objectives underlying each piece of legislation. If these
are not stated expressly, they can often be identified by implication from the topic, structure and provisions of the
legislation. If the purpose or objective seems to be indeterminate or elusive, then primary emphasis should revert back
to the text of the legislation.
5. The Golden Rule: This rule is often adopted if the literal interpretation, i.e. a plain and natural meaning approach,
results in an absurdity or inconsistency. If so, the plain and natural meaning may be modified so as to avoid that
absurdity or inconsistency, but no further.
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6. Natural Justice: If there are several shades of meaning to choose from, the preferred meaning should be that which
results in least detriment to individual liberty, rights or privileges. If a discretionary power is being exercised, the
decision-making body is required to have regard to the way the decision may adversely impact on an individual.
7. Interpretation Acts: The Acts Interpretation Act 1901 (Cth) and the Acts Interpretation Act 1954 (Qld) can be used to
assist with the interpretation of an Act. Both of these Acts prioritise the approach to interpretation. Section 15AB of the
Acts Interpretation Act 1901 (Cth) allows extrinsic material to be considered and taken into account if required to confirm
the literal meaning, clarify obscurity or ambiguity, or avoid an absurd or unreasonable meaning. In the drafting context, if
background papers, notes or memorandums exist which clearly disclose the purpose of intention behind the ambiguous
or obscure words then this material may be used to aid interpretation.
(Source acknowledgement: La Trobe University Law School)
Departmental Assistance
It is the responsibility of the respective regulatory or administrative body charged with administering and enforcing the
Act under its jurisdiction to ensure that there is sufficient information available to consumers and the legal profession to
enable the public and real estate businesses to understand, interpret and implement the provisions of the law.
Information services are available to agents at the web addresses included with each overview of the Acts discussed.
These information services include:
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In Queensland these are special publications provided by the Office of Fair Trading on the internet, and hard
copy advice sent to practicing agents regarding the Property Agents and Motor dealers Act. In some States the
Commissioner also publishes regular guidelines outlining how the Department and a Tribunal would rule on a
given situation.
Best Practice Guidelines for agents published by the Office of Fair Trading. In Queensland this is known as
The Real Estate Agency Practice Good Business Guide. This is a simplified guide to Queensland's Property
Agents and Motor Dealers Act 2000 and Property Agents and Motor Dealers Regulation 2001. The guide
contains the following information:
o licence categories and requirements, including registration of employees;
o an outline of the Commercial and Consumer Tribunal;
o impacts on real estate transactions, including Appointment to Act terms and conditions;
o agent's remuneration, including commissions, fees, charges and expenses;
o statutory disclosures to buyers and sellers;
o the contract warning statement;
o general responsibilities of a licensee, including the activities of auctioneers;
o how to operate a trust account;
o penalties for false and misleading representation;
o core rules of the code of conduct;
o general business information, including tips on how to avoid scams; and
o useful contacts.
The Office of Fair Trading advises agents to use this guide to ensure that they are meeting their legal
obligations and to keep a copy on hand when dealing with clients. In addition to the guide, other services
offered by regulators include:
o
o
o
o
Free telephone and email responses to queries regarding legislation;
Publications and booklets on applying legislation to everyday real estate business practice;
Copies of the current Act, and its regulations; and
Advice regarding amendments including proclamation dates from policy advisers working within the
respective regulators department or office.
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Legal Advice
It is essential that interpretation of legislation should be referred to a legal representative and is not to be undertaken by
the agent. It is common, for instance, where there is no precedent in the Courts, that a solicitor (especially a barrister)
may challenge an interpretation through a point of law. Solicitors are trained practitioners who are accustomed to
researching Court precedents regarding interpretation of legislation and their expertise is invaluable in determining
resolution. For example, the Property Agents and Motor Dealers Act has numerous sections that need to be challenged
in a Court of law. One common example is whether a PAMD Form Section 27c is required to be given to and signed by
every registered bidder at auction. Advice from the Office of Fair Trading is that it does not have to be given as the
prospective buyer cannot be identified until the fall of the hammer at auction, and once the hammer falls, the contract is
formed and to give a disclosure after the contract is formed would be contrary to the Act. However, most legal
practitioners advise that, to conform with the intent of the Act, all registered bidders should be given and sign a Section
27c, regardless of whether they are the successful buyer or not.
Queensland, like all States or Territories, has the attitude that legislation can be subject to the rules of Court, which
means that final legal interpretation of meanings of headings and sections of an Act can be left to the discretion of a
Court finding. We saw this was the case in the recent matter relating to the attachment of the Warning Statement as the
top page of a contract. Please refer to the case study below.
Case Study
Most contracts for the sale of land are prepared by the seller‟s property agent. The Property Agents and Motor Dealers
(PAMD) Act requires a warning statement, in the approved form be attached to the contract, as its first or top sheet.
In the recent decision of MNM Developments v Gerrard, some practices of agents came under scrutiny. The decision
concluded that the requirements of the PAMD Act are prescriptive and any deviation from the requirements may result in
an invalid contract.
In this case, the seller‟s agent sent to the buyer a continuous fax comprising, in this order, a cover sheet, disclosure
statement, warning statement and the contract. The buyer‟s director signed the disclosure statement, the warning
statement and the contract, in that order, and faxed the executed documents back to the seller‟s agent.
One day before settlement, the buyer terminated the contract on the basis that the seller failed to comply with the PAMD
Act because the warning statement was not attached to the contract.
The Court of Appeal made the following findings:
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A contract concluded by facsimile transmission would not satisfy the requirements of the PAMD Act.
The warning statement must be presented on top of the contract so that it has the effect of bringing the contents
of the warning statement to the purchaser's attention prior to the signing of the contract.
Negotiations can be done by fax, but the act of contracting must be done by the exchange of original
documents.
In light of the decision, the State Fair Trading Minister has issued a warning to the property agents to make sure buyers
and sellers sign original contracts.
(Source acknowledgement: Holding Redlich Solicitors 2005)
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Ensuring Compliance with the Law
Anyone who owns or operates a real estate business knows there is continuous effort and commitment needed to keep
the business going and up-to-date with all the laws that impact on its operations and services. But sometimes it is
possible to fall into the trap of day-to-day routine and overlook ways to improve your business and keep up-to-date with
new trends and developments.
To continue to offer high standards of service to your customers, it is not only important to continuously improve your
business but to make sure you are aware of changes to the laws that impact on the way you must operate.
Business owners and operators need to constantly check that they are complying with the law. To keep up-to-date with
changes to legislation which may affect your industry, you will need to implement a system to track changes to
legislation. However, it is also important to ensure that those changes are communicated to agency personnel and are
implemented as soon as possible into your business.
Your strategy should closely resemble a risk management strategy where you need to:
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Identify the legislation that needs to be tracked. You must ensure that your plan covers all areas of compliance
including:
o Acts of Parliament – both State and Federal;
o Local council by-laws (such as signage requirements);
o Case Law; and
o Authoritative pronouncements which could form part of legal compliance including codes of practice
issued by reputable national or representative bodies and policies released by government bodies and
other relevant organisations such as the REIQ.
Write a compliance program for the agency outlining those items of legislation that need to be tracked and
monitored. This may be part of your overall agency policies and procedures or it may be a separate document.
Decide on methods to monitor the program - that is, will it be through monitoring websites and receiving email
alerts and newsletters. Will you rely on your agency solicitor to inform you of changes or will you rely on the
REIQ or your franchise or marketing group to keep you informed?
Appoint a person to be in charge of legislative compliance and give them clear instructions on your plan of
action.
Have a system to implement the new changes in the agency. This should include a communications strategy to
ensure that all personnel are aware of the changes and have access to the changes immediately.
Educate agency personnel so they understand the nature of the changes and can put them into operation by
the due date. This educational process may include in-house and external training by experts.
Audit the agency operations and documents to ensure compliance with the new law. This needs to include
ensuring that you are using the most up-to-date forms and forms generation programs, and that agency point of
sale materials, consumer communications and websites all reflect the new changes by the due date.
Maintain the agency compliance with new legislation to ensure that superseded materials are archived securely
and any queries from staff are attended to correctly and effectively.
Responsibilities for Legal Compliance
Principal Licensee: Executive Management are ultimately, under the Property Agents and Motor Dealers Act,
accountable for the legal compliance of their business. If a salesperson for instance breaches the law, then the licensee
is also held accountable.
The Office Manager: The Office Manager or Administrator should assume responsibility for ensuring effective
implementation and maintenance of all new legislative changes and that all personnel adhere to the new systems and
guidelines. Managers are then responsible for the regular reporting of the status of controls, compliance breaches (or
potential breaches) and their improvement to the Principal Licensee. The Office Manager should also be responsible for
ensuring that agency systems, operations, software programs, and point of sale materials reflect the new legislative
changes.
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The Office Manager should also liaise with the agency‟s legal adviser to ensure that legal compliance provisions have
been correctly interpreted and implemented. Plans for ensuring that new laws and changes to the law are appropriately
recorded, communicated and responded to across the organisation should be signed off by the agency legal adviser.
Once the legislative changes have been successfully implemented into the agency operations and services, then the
Office Manager should:
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make regular assessments on the impact and exposure of the legislation to each area;
in conjunction with the Licensee facilitate the continuous improvement relating to the new legislation;
regularly liaise with external parties such as legal advisers to ensure that agency systems remain up-to-date;
and
ensure that ambiguous areas of legislation are clarified through liaison with agency legal advisers and
Departmental policy advisers or the REIQ best practice adviser and this is re-communicated amongst agency
personnel.
Agency Personnel and Sales Representatives: All personnel have a responsibility to ensure that their activities on
behalf of the agency and consumers who they represent comply with the new law. Policies and procedures should
require all personnel to:
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comply with all relevant legislation;
familiarise themselves with the agencies polices concerning compliance with specific areas of legislation that
affect their workplace activities;
report perceived breaches, risks, hazards, incidents and complaints;
refer to the agency‟s policy and procedures before they act if they are uncertain as to what is legal compliance
or have the matter clarified by the Office Manager or Principal Licensee; and
implement the practices learned in training provided by the agency relating to the new legislation.
Complying with Industry Codes of Conduct
There are two different types of industry Codes of Conduct:
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Regulatory – which are enforceable under statute law; and
Voluntary – which can only be enforced by the organisation or body empowered under its corporate
governance.
Regulatory Codes of Conduct
Real Estate agents may be subject to a range of Codes of Conduct in their business activities. In Queensland this
includes mandatory Codes such as:
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PAMD (Auctioneering Practice Code of Conduct) Regulation 2001
PAMD (Property Developer Practice Code of Conduct) Regulation 2001
PAMD (Real Estate Agency Practice Code of Conduct) Regulation 2001
PAMD (Restricted Letting Agency Practice Code of Conduct) Regulation 2001
The Franchising Code of Conduct (Regulated by the ACCC)
Regulatory Codes of Conduct are mandatory and are enforceable under statute law. They are to be read in
conjunction with the Act and serve to complement the Act and enhance implementation of the Act into best business
practice.
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The PAMD Codes of Conduct listed above are described in great practical detail through the Office of Fair Trading‟s
Good Business Guides which are available by visiting the OFT website. Go to:
http://www.fairtrading.qld.gov.au/OFT/oftweb.nsf/AllDocs/RWPB3CEE852902EC4F24A256B560027CC81?OpenDoc
ument&L1=Publications
The Franchising Code of Conduct
Australia has legislation, by way of the Franchising Code of Conduct, which applies to all franchise agreements
entered into after 1 October 1998. The Code was amended in October 2001.
The Code aims to regulate the conduct of participants in franchising towards each other and to ensure that they
are sufficiently informed about a franchise before entering into it. The Code also provides a cost-effective
dispute resolution scheme for franchisees and franchisors to resolve any disputes . The Code provides certain
obligations which must be included in the franchise agreement as well as requiring a franchisor to provide a
disclosure document to the franchisee. There are also requirements in relation to termination of franchise
agreements, dispute resolution, auditing of advertising and marketing funds, and transfer of franchises.
Under the Code, the franchise agreement must deal with or include:
 a cooling off period of seven days. This gives the franchisee some time to change its mind and protects
the franchisee from the possibility of being pressured into buying a franchise by the franchisor;
 a copy of the lease;
 marketing funds;
 transfer; and
 termination.
Any clause in an existing agreement that is inconsistent with the Code is unenforceable and can be viewed by
going to the following website: http://www.accc.gov.au/content/index.phtml/itemId/6118
Voluntary Codes of Conduct
The most common voluntary code of conduct applying to Queensland agents will be the REIQ Standards of Business
Practice. The REIQ Standards exist to ensure that a high standard of ethical practice is maintained amongst its
members. It relates primarily to agent-to-agent dealings and how those activities may impact on consumers. When
an agent joins the REIQ, they agree to abide by and uphold the Standards of Business Practice and to conduct their
business in a manner that will uphold and enhance the reputation of the real estate profession.
The ACCC sets strict guidelines for voluntary industry codes. All voluntary codes of practice are to be submitted to
the ACCC for approval and must be consistent with the law so that members who abide by the Code know their
obligations and uphold the law through best practice. These guidelines can be found by visiting the following
website:
http://www.accc.gov.au/content/item.phtml?itemId=658186&nodeId=c84e7c9517b774a9d75a2dc613174209&fn=Gui
delines%20for%20developing%20effective%20voluntary%20industry%20codes%20of%20conduct.pdf
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Further Reading and Source Materials
Queensland Parliament
Everyone‟s Parliament Fact Sheet 3.7
The Legislative Process
The Making of a Law (Simplified)
June 2008
Department of the House of Representatives ACT
Infosheet No 7- Making Laws
Chamber Research Office
September 2008
Parliamentary Education Office ACT
Fact Sheet 51 – Preparing a Bill for Parliament
September 2008
Sowden and Hocken
An Introduction to Real Estate Law
Boolarong Publications 1988
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